Pace Environmental Notes, the weblog of the Pace University School of Law’s Environmental Collection, is a gateway to news, recent books and articles, information resources, and legal research strategies relevant to the fields of environmental, energy, land use, animal law and other related disciplines.

Summary

The adequacy
of the science supporting implementation of the Endangered Species Act (ESA) has
received considerable congressional attention over the years. While many
scientific decisions pass unremarked, some critics accuse agencies responsible
for implementing the ESA of using “junk science,” and others counter that
decisions that should rest on science are instead being dictated by political
concerns.

Under the ESA,
certain species of plants and animals (both vertebrate and invertebrate) are
listed as either endangered or
threatened according
to assessments of the risk of their extinction. Once a species is listed,
powerful legal tools are available to protect the species and its habitat.
Efforts to list, protect, and recover threatened or endangered species under
the ESA can be controversial. Some of this controversy stems from the
substantive provisions of this law, which can affect the use of both federal
and nonfederal lands. The scientific underpinnings of decisions under the ESA are
especially important, given their importance for species and their possible
impacts on land use and development.

The Fish and
Wildlife Service in the Department of the Interior and the National Marine
Fisheries Service in the Department of Commerce administer the ESA, and each
agency has policies and requirements to ensure the integrity and objectivity of
the science that underlies ESA decisions. The Information Quality Act (P.L.
106-554, IQA or Data Quality Act) also imposes general requirements and has
resulted in agency changes to carry out the goals of that act to maximize the quality,
objectivity, utility, and integrity of information disseminated by the
agencies.

In several
situations, economic and social disputes have resulted from actions taken to
list, protect, and recover species under the ESA. Critics in some of these
disputes assert that the science supporting ESA actions is insufficiently
rigorous. Others assert that in some instances decisions were political rather
than scientific. Controversy has arisen over what might be the essential
elements of “sound science” in the ESA process and whether the ESA might
benefit from clarification of how science is to be used in its implementation.
The courts have had occasion to review the use of science by the agencies, which
generally must show their decisions were not arbitrary and that they rest on
credible science. For some purposes, if that science is the best available,
even if it is considered imperfect or incomplete, it still may be used.

Several bills
affecting science as used in the ESA were introduced in recent Congresses, but
to date none have been enacted. Legislative activity in the 112th Congress is
summarized in CRS Report R41608, The Endangered Species Act (ESA)
in the 112th Congress: Conflicting Valuesand Difficult Choices,
by Eugene H. Buck et al.. No bills concerning ESA and science have yet been
introduced in the 113th Congress.

This report
provides a context for evaluating legislative proposals through examples of how
science has been used in selected cases, a discussion of the nature and role of
science in general, and its role in the ESA process in particular, together
with general and agency information quality requirements and policies, and a
review of how the courts have viewed agency use of science.